If there’s one thing that has united most everyone during the very difficult and uncertain COVID-19 pandemic, it’s the Tiger King. The recently-released Netflix documentary about Joe Exotic (aka Joseph Maldonado-Passage) has caught America and the internet’s ‘memedom’ by storm. Internet memes seem to really run the gamut, and my personal favorite is the one about homeschooling parents greeting their kids at 8:00 a.m. with the calm words of Carole Baskin (“all you cool cats and kittens”) only to lose their minds five minutes later and utter Joe Exotic’s aggressive—yet oddly appropriate—“guess what motherf---er?!?”
Like most everyone, and upon recommendation of a few (hundred thousand people!), I succumbed and watched Tiger King. Now, naturally while watching Tiger King I was drawn in for numerous reasons:
1. I’ve always liked big cats and thought the idea of hanging out with them in your living room would be incredibly cool (btw, the wife still isn’t going for it);
2. The concept of the show and storyline seemed bizarre and the ensuing train wreck provided some great intrigue; and
3. Ultimately, given that there was a criminal component to the story, the wheels in my head started spinning and I started thinking about how I would handle what seemed like a difficult case.
Without further ado, let’s dive right in to how I would handle defending the Tiger King, aka Joe Exotic. But first, a quick disclaimer: I have not reviewed the evidence, discovery or had any discussion or meetings with anyone involved with the case. I am qualified to write this article because I, a). watched Tiger King on Netflix, b). read some stuff on the internet and 3). I am a licensed attorney
. (*See you’d expect lawyers to give disclaimers, right?)
Question: Why do Fish Get Caught?
Answer: They open their mouth.
Watching the Netflix series and seeing Joe Exotic’s way of doing things and how he promoted himself gives you some insight as to what likely led to his demise. Demise? Yeah, SPOILER ALERT: He was convicted of all 19 counts in the superseding indictment and was recently sentenced to 22 years in federal prison.
Now, back to what I would do to represent Joe Exotic and tie it all in to the poor little fish at the beginning of this section. See, there are plenty of clients that reach out to us before they’ve been arrested and are simply under investigation by the federal government
or by state law enforcement or its numerous investigative agencies.
Assuming Joe Exotic would have reached out to me and asked me to represent him during a pending investigation, the first word of advice I would give him (and you can feel free to apply this as it’s a wonderfully impactful PSA): SHUT UP
While we are working to sort through the investigation, allegations and speaking with law enforcement, prosecutors, etcetera, let’s not say or do anything that’s going to get us in more trouble. Not only will it get us in more trouble, it can flat out be used against you. Remember literally every true crime documentary, t.v. show or episode of Cops you’ve ever watched where they say “You have the right to remain silent”? That warning is not some creative little gotcha ploy by law enforcement; it’s your constitutional right. Use it!
My word of advice to Joe Exotic during an investigation would be to not only refrain from speaking to law enforcement without an attorney present
, but avoid speaking with anyone about his case, the investigation or anything that can be used against him later, be perceived as obstruction of justice or destroying of evidence or tampering with witnesses.
While my goal in representing someone during an ongoing investigation
is to avoid charges being filed altogether, or at the very least obtain a reduction of charges, you have to be careful and avoid to further hurting yourself by giving the government more evidence to use against you.
Minimize the Damage – Superseding Indictment
At this stage in the game, I would have tried to put up an iron fence around my client and worked at convincing the government that they shouldn’t charge him at all. If necessary, we would work on getting them to file reduced charges. A lot of work in federal court comes down to trying to limit your client’s exposure and Joe Exotic had lots of exposure given the superseding indictment that ultimately brought 19 counts against him.
While the total number of charges against Joe Exotic seem overwhelming, he was originally charged with only two (2) counts dealing with Murder for Hire. On September 5, 2018 a federal grand jury
returned an indictment for those charges. On November 7, 2018, a superseding indictment was handed down and further alleged the falsifying of records and killing of tigers.
Early involvement by an attorney on Joe Exotic’s behalf may have garnered a better outcome by starting with the end in mind and working backwards. While he was ultimately charged with 19 counts in violation of federal law, the two (2) most serious counts were Murder for Hire where he allegedly tried to have Carole Baskin killed.
The other counts, while serious, dealt with the violations of Lacey Act for falsifying records of wildlife transactions in interstate commerce and violations of the Endangered Species Act for killing tigers. The dichotomy between the two is evident in the Judge’s sentencing of Joe Exotic. While the Murder for Hire counts got Joe Exotic 108 months (each!) in federal prison and they are to run consecutively (meaning one after another, rather than concurrently where the 108 months for each charge would count/be served at the same time).
The other counts for falsifying records (48 months each are concurrent with one another), but are to run consecutively with the Murder for Hire counts. As for the counts dealing with killing the tigers Joe Exotic will have to serve 12-month sentences for each but they will run concurrently. In layman’s terms, the majority of his time stems from the Murder for Hire charges (18 years for the Murder for Hire and four (4) years for the falsifying records).
Watching the Netflix documentary and a quick reading of Joe Exotic’s trial transcript from when he took the stand as a witness in his own defense (more on that a bit later), shows that he had plenty of information to offer the government assuming they were dead-set on charging him, which it appears they were. If charging Joe Exotic was unavoidable, one way to limit his exposure is to negotiate for some kind of cooperation where Joe Exotic could have given the government information about the strange and dark underworld that is the exotic animal trade. This assistance could have led to a much more lenient sentence after Joe Exotic’s substantial assistance to the government by way of either a 5K motion (prior to sentencing) or a Rule 35(b) reduction coming after sentencing.
Do We Have a Deal?
If the government is going to charge your client, is there some way to reach a deal to avoid trial and further limit your client’s exposure? In the case of Joe Exotic, an agreement prior to the superseding indictment could have benefited him greatly. In addition to the reduction on his sentence that a defendant typically receives for assistance and accepting responsibility (three (3) points off their guidelines score at sentencing), Joe Exotic may have been able to work with the government and provided valuable information that may have led to a much larger case being brought by the government against others involved in this world and were guilty of wrongdoing.
Joe Exotic may have benefited greatly by going from Public Enemy No. 1 to Star Witness.
Assuming there was no deal to be had, it wasn’t in our client’s best interest or Joe Exotic decided not to work with the government, then it’s on to trial. We are never afraid to proceed to trial on behalf of our client’s and make the government earn their conviction. See, while the court of public opinion may not always feel that way, it is our constitutional right to be innocent until (I always liked using unless) proven guilty.
At trial, in order to convict Joe Exotic of each count the government would have to prove each element of each count, beyond and to the exclusion of every reasonable doubt. Depending on the facts of each case (and it may even vary by count within a given case), we will try to either: a). show the jury that our client is innocent and the charge should not have been brought in the first place, or b). the government has failed to meet its burden and there is reasonable doubt (meaning our client is Not Guilty).
Let’s first focus on the Murder for Hire counts.
Here, from watching the Netflix documentary and doing some preliminary reading on the internet (what could possibly go wrong?), it seems clear that there were holes in the evidence to work with by which to raise reasonable doubt. See, the one count with Mr. Glover, is riddled with reasonable doubt. Here, we would hammer on the parties involved and bring out the fact that they had much to hide as well. This is done as a way to attack their credibility with the jury and raise questions as to whether they’re being truthful. While there was allegedly an exchange of money, Mr. Glover never made it to Florida.
According to his interviews on the documentary, he ended up partying and going home to South Carolina. Not to mention his loyalty to Mr. Lowe and the conflicts of interest dealing with the zoo and the subsequent transfer of ownership. The gentleman that ultimately worked with law enforcement and quarterbacked this deal, Mr. Garretson, could have been impeached or had his testimony called into question as it appeared he had axe to grind with Joe Exotic over sales/transfers of baby lemurs.
The other Murder for Hire “plot” could have been challenged given the fact that money did not change hands. While, that is not necessarily a requirement, it does call into question whether there was a conspiracy and any overt act to further same took place.
One more thing with this count and I’d be remiss to not mention. See, initially Mrs. Izquierdo brought up entrapment during this part of the documentary. While that’s a potential defense or something that can be possibly thrown out during a trial, entrapment requires that the government/law enforcement forced you to do something that you otherwise weren’t going to do (or weren’t prone to doing). See why the entrapment defense is much tougher here given the videos and litany of comments made by Joe Exotic over the years?
Lacey Act (falsifying records of wildlife transactions in interstate commerce) and Endangered Species Act
These counts were the ones where the trial may have been won or lost as they were the most attackable on cross examination and reliability of witnesses. As for the transferring of animals for profit rather than as donation, Joe Exotic did not own the zoo at this point in time. He was simply in charge of entertainment for the property. Therefore, he could not have transferred or sold animals that did not belong to him. While they may have been in his charge, they weren’t his to sell. Or at least that’s the argument that’s there to be made.
It could have also been argued to the jury that the notes were simply Joe Exotic as entertainment director keeping track of the transfers at the request of his boss, the zoo’s new owner. While hearsay is also allowed at trial under certain circumstances, it can definitely be called into question as well.
The counts dealing with killing the tigers could have been challenged as purely circumstantial and an attempt by the government to pile on Joe Exotic. There did not appear to be physical evidence linking Joe Exotic to killing of the tigers/animals. Now, while they don’t need physical evidence to prove criminal charges, this type of charge typically is greatly served by having such evidence. What did the jury rely on? Likely, more circumstantial and hearsay evidence.
Trials are unpredictable and fluid
This is where the fluid and unpredictable nature of trials kicks in. See, while the Murder for Hire counts may have been the government’s strongest counts, if they are attacked properly and things start to go Joe Exotic’s way, it can greatly impact how the jury looks at the other counts. What do I mean?
Well, if all of a sudden you start to gather momentum in attacking the Murder for Hire counts and witnesses and the jury starts leaning toward Joe Exotic, it can greatly influence and impact how they look at the evidence when it comes to the falsifying records and killing tigers. How do you attack witnesses to defend your client? If the witnesses have an interest in how the case is decided, they have a reason to lie, or stand to gain something by Joe Exotic being convicted then they may not be telling the truth. They may say whatever it takes to help the government secure a conviction.
If you’re able to start with small victories like that, and continue getting them throughout the trial, it may ultimately look like the government is overreaching, out to get Joe Exotic or flat-out failed to prove its case beyond a reasonable doubt. This illustrates the old adage about being a trial lawyer in that you will inevitably win cases everyone thought you were supposed to lose. You can never stop fighting for your client. That’s how I would have fought for Joe Exotic.
Wait, what about Joe Exotic and the fish?
Ah yes, as I promised, we would discuss the part about Joe Exotic becoming a witness in his case and taking the stand in his own defense. This is 100% Joe Exotic’s decision and no one (not his attorney, the judge or the prosecutor) can force him to take the stand or not take the stand. Previously in this post, I mentioned that Joe Exotic took the stand in his own defense. He did so against the advice of his defense attorney
. Why is that important?
Because if you have a case such as this where there are seemingly holes in a lot of the charges, and you are able to hammer away at the government’s case and witnesses, the defendant may completely undo that by taking the stand and opening his mouth. I am not saying that’s what happened here, but from reading the transcript it appears as though it may not have helped his cause. While it appeared Joe Exotic did a pretty good job handling the prosecutor’s questions on cross examination, there are always things that come out or are said in a certain way that the jury may hang on to.
My advice to client’s is that it’s 100% their choice but unless there’s an affirmative defense or a legal reason that they absolutely have to take the stand to explain, it is almost always better to remain silent and have the government prove its case rather than help them by taking the stand.
Remember that right to remain silent mumbo jumbo I mentioned earlier? It applies here too. You have the right to remain silent and not be forced to be a witness against yourself. It’s such a sacred right in our judicial system that the judge will even instruct the jury about that right and they are to not consider your silence to mean anything and cannot use it against you. It is the government’s job to prove your guilt beyond a reasonable doubt and you, as the defendant, need not prove anything (and that includes your innocence).